Tuesday, March 1, 2011

Is he or Isn't he an American citizen? - Professor Emeritus at the Law School of Notre Dame University

This article has gone viral and is now on numerous sites.  By this time your Congressperson probably knows about it.  But just in case how about sending him/her a copy of the article or a copy of this link?
It is time for a new approach
The speculation about President Obama''s eligibility goes on and on, with no reliable access to the truth and with no end in sight. It is time for a new approach.


The Constitution provides: "No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the Office of President." Art II, Sec. 1. Neither the Constitution nor any federal law defines the term "natural born citizen." Nor has the Supreme Court provided a definition that covers the questions presented in the Obama case.

In Minor v. Happersett, in 1875, the Supreme Court, made an incidental reference to the issue: "[N]ew citizens may be born or they may be created by naturalization. The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first." 88 U.S. 162, 167-68 (1875).

The Obama "Fight the Smears" website has published a digital photograph of a short-form "Certification of Live Birth" issued by the Hawaiian Department of Health that lists his place and date of birth as Honolulu on August 4, 1961. At that time, Hawaii''s practice was to issue also a long-form Certificate of Live Birth which contains more information, including the name of the hospital, or address of the place, where the birth occurred; the identity of the physician or other "attendant" at the birth; and the signature of the parent or other ''informant" certifying the accuracy of the information, etc. President Obama has not given the permission required by Hawaiian law for release of that long-form certificate.

Numerous lawsuits challenging Obama''s eligibility have been rejected by every court involved, including the Supreme Court of the United States. Some are still pending. The rejections have been based on various grounds, including the plaintiff''s lack of standing to sue and other specified and unspecified procedural grounds. No court has agreed to decide any of those suits on the merits.

The lawsuits have presented a bewildering array of claims, including, among others, that: Obama was born, not in Hawaii, but Kenya; if he was born abroad, his mother, an American citizen, was legally too young to confer that citizenship on him at birth; the Hawaiian short-form certification of birth published on the Obama website is a forgery; that short-form certification could have been legally issued in 1961 to certify a birth occurring elsewhere than Hawaii; Obama is ineligible because, wherever he was born, he had dual-citizenship since his father was a British citizen and the British Nationality Act of 1948 made his son a British citizen at birth; Obama identified himself as a foreign student at Occidental College, Columbia University, and Harvard Law School; when Obama traveled to Pakistan in 1981, he did so on an Indonesian passport at a time when Indonesian law forbade dual citizenship, etc., etc.

There is no reason to analyze those lawsuits here in detail. Their lack of success cannot be ascribed simply to a hyper-technical evasion of judicial responsibility. For example, the rule requiring a plaintiff in a federal court proceeding to have a sufficient personal interest, or standing, to bring the suit provides needed assurance that suits will be seriously contested and will seek more than merely advisory opinions. On the other hand, it is fair to say that the Obama controversy involves significant issues of fact and law that deserve some sort of official resolution.

I suggest no conclusion as to whether Obama is eligible or not. But the citizens whom the media and political pundits dismiss as "birthers" have raised legitimate questions. That legitimacy is fueled by Obama''s curious, even bizarre, refusal to consent to the release of the relevant records. Perhaps there is nothing to the issues raised. Or perhaps there is. This is potentially serious business. If it turns out that Obama knew he was ineligible when he campaigned and when he took the oath as President, it could be the biggest political fraud in the history of the world. As long as Obama refuses to disclose the records, speculation will grow and grow without any necessary relation to the truth. The first step toward resolving the issue is full discovery and disclosure of the facts.

The courts are not the only entities empowered to deal with such a question. A committee of the House of Representatives could be authorized to conduct an investigation into the eligibility issue. The classic formulation of the Congressional role is Woodrow Wilson''s, in his 1884 book Congressional Government:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function...[T]he only really self-governing people is that people which discusses and interrogates its administration. (p. 198)

Wilson later retreated from his affirmation of Congressional supremacy. He said in 1900 that the president, rather than Congress, "is now at the front of affairs." (Congressional Government, preface to 15th edition, 1900, p. 22.) In his 1908 book Constitutional Government in the United States, four years before he was elected to that office, he described the president as "the political leader of the nation." (pp. 67ff.) Wilson''s second thoughts on congressional supremacy, however, do not negate Congress'' "informing function." The investigatory power has remained as an essential role of Congress.

The Constitution nowhere expressly grants to either House of Congress a general power to investigate in aid of legislation, or in aid of overseeing the Executive Branch. However, the Supreme Court has long recognized that such a power is implied as an essential concomitant to Congress''s legislative authority. John E. Nowak and Ronald D. Rotunda, Constitutional Law (2004), 280. See McGrain v. Daugherty, 273 U.S. 135 (1927).

The investigative power of Congress has multiple purposes. "The ability to gather information has been regarded as a predicate to effective legislation and as important to providing a legislative check on executive actions. The Supreme Court has explained that Congress thus may conduct ''inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.'' The power to investigate also includes ''probes into departments of the Federal Government to expose corruption, inefficiency or waste''..... The authority to investigate necessarily requires the power to compel testimony." Erwin Chemerinsky, Constitutional Law (2006), 310. (Internal citations omitted).

It is difficult to imagine, to borrow Wilson''s phrase, a more pressing "affair of government" than the question of whether a sitting president obtained his office illegally, and perhaps even by fraud. An investigating body must not prejudge the case. Its concern must be, first, to put the facts on the record and then to consider whatever legislation or other remedy might be appropriate in light of those facts.

The House of Representatives is an appropriate body to inquire into the facts and legal implications of a President''s disputed eligibility for the office. The House itself has a contingent but potentially decisive role in the election of a president. The 12th Amendment to the Constitution governs the counting of the electoral votes as certified by the states:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

The power to investigate can be exercised by a House committee provided that the investigation is within that committee''s authorization as determined by the House. An investigation into Obama''s eligibility by a committee or subcommittee of the House could have several legitimate objectives, including among others:

1. To ascertain the facts, compelling by subpoena the production of all the available records relevant to Obama''s eligibility, including the complete Hawaiian records of his birth; his passport records to ascertain whether he traveled to Pakistan in 1981 on an American or other passport; the records from Occidental College, Columbia University and Harvard Law School to determine whether Obama described himself as a foreign student; and such other records as may be relevant. The disclosure of such information to the public would be an appropriate exercise of Congress'' "informing function."

2. The consideration of legislation to require candidates for a federal elective office to produce, at an appropriate time, evidence of their eligibility for that office. There is now no federal law or regulation that requires such disclosure.

3. The consideration of legislation to define the constitutional term, "a natural born Citizen."

The American people do not know whether the current president achieved election by misrepresenting, innocently or by fraud, his eligibility for that office. I neither know nor suggest the answer to that question. But it would be a public service for the House of Representatives to employ its authority to determine those facts and to recommend any indicated changes in the law or the Constitution.

Charles E. Rice is professor emeritus at the Law School of Notre Dame University in South Bend IN. He is the author of What Happened to Notre Dame?

17 comments:

Chandler said...

What about uncovering how he obtained a U.S. Passport? Somewhere along the way he had to show a copy of a birth certificate. That or the passport was obtained without proper documentation (Fraud).

Rob said...

It is fairly certain he never had a US passport other than the one issued as a US Senator. I believe no papers are required for the issuance of such a passport, it is a diplomatic passport issued by virtue of the office the individual holds. This would have been a reason for the Russians to have held up Senators Lugar and Soetoro in 2005 as they suspected him (Soetoro) of being a British Spy. No passport is required as president.

Jane said...

I am a former research librarian and majored in history, so I have a fondness for these topics.

This part about the DNC documents rolls around the Internet, but it hasn't been fully explained to me as to why it doesn't matter. I would love to have this looked into by a news source.

The DNC Official Certification of Nomination documents are posted here at Scribd, and the difference is so dramatic looked at this way.

"Al Gore, 2000, John Kerry, 2004:

This is to certify that the following candidates for President and Vice-President of the United States are legally qualified to serve under the provisions of the United States Constitution and are the duly chosen candidates of both the state and the National Democratic Party ...

Barack Obama, 2008:

This is to certify that the following candidates for President and Vice-President of the United States are legally qualified to serve under the provisions of the national Democratic Parties balloting at the Presidential Preference Poll and Caucus ... "

No one can figure out why the language was changed to leave out the Constitutionally eligible part. It wasn't changed for the Republican party that year. Perhaps there is a simple explanation, but I haven't heard one put forth.

Jane said...

Actually, there is another issue with the DNC documents, too. 49 states were given one document without the Constitution clause, and Hawaii was given one with the clause. Both misseplled the word "through" as "though," so they were copies of each other. Isn't that a little odd?

Here is a video showing the two documents.

The Republican certification for John McCain used wording for all 50 states that included the "constitutionally eligible" statement.

gcust1980 said...

Could someone please qualify or link to the original story, or is original to this blog spot. Some of us are dying to spread it around, but wary of missteps.

In the meantime, check out this latest PRO-"birther" animated short (#8) in an hilarious series specific to this issue. this episode features the new character of "George Goldfinger Soros (teddy) Bear"!

Sam Sewell said...

barack obama: is he or isn't he an american citizen? Charles Rice - Google it.

Jack7777 said...

Well said. The Court needs to determine whether a natural born citizen is someone born of two American citizens or not. Obama's communist father was not an American citizen, there is no dispute about that.

Jim D said...

Wow! IMPRESSIVE, indeed. This is one of THE very best articles on this seminal issue I've read. Erudite, balanced and mercifully bereft of bias. Thank you very much.

wvalora said...

Another issue that must be resolved is how and when when did Obama get the numerous Social Security numbers that he has been using over the years, including the one he is presently using that was originally issued to someone else in the 1800s.

Suzanne said...

This man is not a citizen and everyone should be sending articles whether through the e-mail, phone calls or U.S. mail, and keep hounding the members of the House of Representative. He must be removed from office. He has not only taken over the office of the presidency, but he has time and time again refused to obey our constitution. If they do not want to admit that he is not a Natural Born Citizen, or that he may not even be a Naturalized citizen, then they must impeach him for the grievances he has committed against our constitution along with Holder and many of his other appointees. He must be removed before our country is completely destroy. Any person who was proud to be the President would bring forth all proof necessary. The election documents prove of the fraud and conspiracy crimes. All of the House and Senate are guilty of treason, and possible pinnacle terrorist attacks against our country, if they do not proceed to remove him from office. Pray and ask God to lead you as to how you may help to convince our elected official to take action A.S.A.P. Enough is Enough! "In God We Trust."

David said...

Article 2 Section 1 isn't the key to getting rid of Obama. The 20th Amendment Section 3 states: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Obama has failed to qualify. Either he qualifies, or be removed if he cannot qualify.

Randy said...

Dr Rice, may I ask two questions?

1. Do you think m De Vattels definition of "natural born citizen", as published in The Law of Nations, could be the understanding the Founding Fathers had as regards the definition of the term? As far as I can determine, it was the only definition of "natural born citizen" available to them when they wrote the Constitution.
2. There are numerous states considering legislation requiring candidates for the Presidency to show their qualifications for said office prior to having their names placed on the ballot. Said proposed laws would require anything from providing a certified Birth Certificate to offering proof the hopeful candidate was not "a subject of any foreign power" at the time of his birth. (This proposed law, in Nebrask, appears to me to be designed to force the Court to define "natural born citizen", and further appears to be drawn with an eye toward the Vattel definition. Is there any strong argument to be made that the States themselves lack standing??
Like you, I would simply like to see the issue resolved but think it will require a definition of "natural born citizen" from the Court, not from the Congress.

Thanks for the blog entry....

Albert said...

Official investigations are essential to adduce evidence, which will likely show that Barry
- is not his father's son
- is not his mother's son
- is not African
- is not American
- is not President
- is not an enemy agent; strike that.
Dr. Rice is right in calling for investigations. Both state and federal governments have good cause to investigate Barry's personal and racial identity.
Barry was adopted at birth. His story about being the son of Stanley Ann Dunham and Obama an alien Luo tribesman is a gigantic hoax. Official investigations are necessary to determine whether he propounded such a fraud.
His real citizenship problem comes from his acquisition of Indonesian citizenship. He can not be both an American citizen and an Indonesian citizen. It follows that he bribed Indonesian officials to suppress evidence of his Indonesian citizenship. He is in league with the aliens who are being rewarded for their corruption. He dare not disclose the corruption voluntarily, even if he wished to, which he emphatically does not. He is probably a Comintern agent.
Barry's complicity in appeasing Islamic aggression dovetails with the communist strategy of allying with Islam to destroy the West, then dealing with Islam. Communism would destroy Islam by an utterly ruthless and richly deserved persecution that would annihilate many times the number of holocaust victims.
By then we would be beyond caring; see https://mail.google.com/mail/?shva=1#inbox/12e4930aec26227f.
It is extremely dangerous to wait for the next election or to make laws blindly without knowing the facts. Laws requiring the production of a birth certificate will do no good in the case of one who is natural born at birth but loses U.S. citizenship thereafter.
Thorough investigation of Obama will almost certainly disclose grounds for rescission for fraud of appointments of presidential electors, impeachment, and prosecution for election fraud. It will also disclose "Dreams from my Father" as election fraud, which should be disclosed to the electorate even if not technically a crime.
Thus Obama is a grave security risk, who must be investigated thoroughly as soon as possible. The fate of the Republic is at stake.
I will send elaboration to Dr. Rice with an urgent request that he muster all forces at his disposal to demand comprehensive investigations, not merely of Barry's birth but also his loss of U.S. citizenship. Darrell Issa's craven refusal to subpoena Barry's birth certificate must be reversed by his House Oversight Committee, which should also subpoena such DNA as might be needed to confirm Barry as the true child of the birth parents identified in or through his putative original birth certificate.

ConsCon said...

Two thoughts:

First, the proposal to have the House of Representatives form a committee to look into the matter is the BEST one I've heard so far for resolving it to everyone's satisfaction - the biggest issue of course being that Democrats will fight to delay it all the way to the Supreme Court (unless Obama's lawyers, who have been preventing all legal attempts to access all of his records) puts a stop to it first. In addition, the Democrats will slander ALL Republicans appointed to that committee in an attempt to forestall it.

Second: Any lawsuit brought against Obama to this point or in the future on this subject should be considered valid if one condition is true - the person bringing the suit voted in the 2008 Presidential election. If that doesn't give them standing, nothing will.

Albert said...

Voting does not give standing. The courts have crapped out.

The best way to resolve the matter is to conduct exhaustive investigative hearings on Obama's eligibility and allegiance, corruption and obstruction of justice, if House RINOs can summon the courage. I suspect that in addition to personal intimidation the Obama cabal is threatening expressly or by implication to impede funding for projects in districts with congressmen who take a stand for exposing Obama's past.

Rocky said...

He reportedly received his Very First US Passport upon becoming a US Senator.

eingriff said...

Rocky's report tends to confirm that Barry Soetoro was send back to the States as a child (and naturalized citizen of Indonesia) on his Indonesian passport in 1971, travelled to Indonesia to get an American student visa at the American Embassy in Jakarta and re-entered the U.S. on his Indonesian passport with student visa in 1981. This, combined with his not registering with Selective Service in 1979, makes a prima facie case for his relinquishing American citizenship in favor of Indonesian naturalization as an adult.
Congressional and grand jury investigators could prove up this prima facie case with relatively few carefully selected subpoenae.
Why don't they? In part because they think Barry's father was Negro, but this would be dispelled by subpoenaing his original birth certificate and his DNA.
Obama the alien black Luo tribesman adopted Obama at birth to cover an out-of-wedlock son of a Caucasian father whose wife could not give him a son.
He was born constitutionally eligible, but relinquished his American citizenship and eligibility.
Moreover, he is a Comintern mole implementing the strategy of using Islamic jihad to destroy Western Civilization. And the House RINOs are giving him free rein by not exposing him.